The Minerals bill also puts great pressure on mining companies to give away 26% of their equity or assets to black economic empowerment (BEE) investors. It does so by redefining the Mineral and Petroleum Resources Development Act of 2002 to include a controversial code of good practice gazetted in 2009 but put on hold because of the consternation it caused. This code, in effect, requires that mining shares or assets sold to BEE investors be debt-free within two years. As most BEE investors lack capital and need extensive loans to fund their acquisitions, companies might have to forgive most of this debt to satisfy the requirement. This risk will revive if the present bill becomes law and automatically brings the code into effect.
She says business needs to interact "more vigorously" with the government and make it more and more aware of the impact that legislation can have on the economy.
"We talk to them regularly but have not yet reached the stage where they take what we are saying on board straight away. It's a long, slow process, like chipping away at a block of granite. On the whole it seems government is not taking on board recommendations that are being made," she says.
Drodskie says the chamber told the government it needs to do an impact assessment on every piece of legislation that is proposed.
There was "a comprehensive attachment" to the Labour Relations Amendment Bill when it was introduced which gave "a very, very good impact assessment and indication of what the downside would be".
As per Peggy Drodskie acting head of the South African Chamber of Commerce and Industry.
This sentiment runs through every interaction with the government (if we can call it that). Ask all those large companies both small and large who submitted comments to the DTI on the new codes, they will say that same thing, "Unfortunately, that was ignored."
there is now a firmly established judicial precedent that frowns upon the use of rigid racial or gender quotas to achieve affirmative action goals. While the constitution acknowledges the need for policies to address the legacy of apartheid, to be legal such discrimination on the basis of race must be "fair", which implies that attempts to reverse the effects of centuries of racism cannot be imposed without due regard for their effect on the incumbents.
This is a lesson the government should have learned by now — SA is a rights-based democracy, which means the executive does not have carte blanche. However good its intentions, like everybody else the government is bound by the law.
Verbiage courtesy of Anton Katz AJ after he declared the "affirmative action policy for the appointment of provisional trustees to insolvent estates invalid ....... because it was too rigid and used race-and gender-based quotas."
This is a very significant judgment because it's probably going to go to the Constitutional Court which will test the rigidity of crass racial classifications under the EAP. Please read the whole report, which I have pasted in its entirity. I have underlined those parts that I think are significant.
The aim of the policy was to address the fact that the lucrative liquidation industry remains largely a white and male enclave. It also sought — by providing for uniform measures — to prevent corruption and fronting in the industry, widely acknowledged to be a pervasive problem.
Acting Judge Anton Katz said the goal of the policy was "admirable".
"However, a policy cannot pass constitutional muster on good intentions alone."
In terms of the policy the master of the High Court would appoint the trustees on a rota system based on race and gender. Under the system white men would be appointed to one out of 10 positions — limiting them to about 10% of the work.
Judge Katz said Parliament had in legislation given the master of the High Courtdiscretion on who to appoint as a provisional liquidator.
Looking at the legislative scheme, he said appointment decisions had to be made first and foremost by the master, not the justice minister.
Even if the policy was interpreted generously, it went beyond the setting of guidelines and intruded "impermissibly into the master’s ability to apply his mind in the making of each appointment". The "rigid and inflexible regime" set out in the policy in effect turned the master into a "rubber stamp", he said.
Judge Katz also found that the prohibition in the Employment Equity Act of the use of race and gender quotas — as opposed to numerical targets — had wider application. Though quotas are not defined in the act, the Constitutional Court, remarking in passing, said employers could not place absolute barriers to the employment or promotion of men or white people.
Judge Katz quoted the Constitutional Court’s remark that the primary distinction between targets and quotas "lies in the flexibility of the standard". In this case, the policy could not be implemented in a way that was not mechanical and rigid.
"While the constitution is a transformative one and ... remedial action to address past injustices is a required and indeed lawful imperative, such measures must be nuanced," he said.
Judge Katz also briefly addressed the controversial argument made by trade union Solidarity: that categorising people according to race was "legally impossible".
He said he accepted that racial classification — "divorced from other contextual factors" — was an arbitrary threat to the dignity and autonomy of individuals.
But the categories referenced in the policy were "utilised throughout what can loosely be termed SA’s affirmative action legislation".
"It is not open to this court to determine that the categories used are themselves arbitrary and irrational," he said.
He said while white males might "decry" affirmative action, carefully crafted affirmative action policies were necessary to overcome "the stark disparities between those on the different sides of the colonial and apartheid divide".
What a shocking entry to 2015. I hope this isn't going to set the tone for the rest of the year. I've changed the banner of this blog in the interim in solidarity for those who were gunned down in the name of religion, a religion that just never seems to regain its standing in the eyes of those who are not Muslim.
Today I'm wearing my Brett Murray, "ANC-for sale", T shirt, which I only wear on special occasions. Thinking about it with the ANC behaving the way it does I should wear this thing every day. I think that press freedom in South Africa hanging by a thread. Big corporates are apparently cosying up to the likes of Zoomer and other ANC incorruptibles this weekend. This is a form of institutional appeasement, a tacit endorsement of the arbitrary manner that the ANC rules this country. I would have preferred only the connected black businessmen to show their faces at the 103rd gathering of rapidly increasing incompetence, with the larger corporates staying away as a sign of protest.
What does this year hold then? Our court action has picked up momentum and we've raised a large amount of money from smaller businesses and organisations who have had enough of Rob Davies and his department. The sad thing is that it's the larger companies that stand to benefit the most and they do not have the will to contribute. I can ony hope that more companies will speak out as Max du Preez and Johan Rupert have recently. We are moving quickly now because I have it on very good authority that the iDioTIc is attempting to bulldoze the charters through the way that they want them. Someone phoned me last year from a charter council begging us to go ahead with our action because the process of drafting this charter has not been followed at all. There's no consultation or debate. If anyone wishes to contribute to our action we are still very open to more support.
Will Zuma fall on his spear this year, or will he be pushed? I don't think so, but I think he's in for a very rough ride this year. If he does one thing right then it must be to get rid of Rob Davies. This man is ........................................................... (fill in your own insensive expletives)
Good luck for this year and thank you for reading this blog